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THE NEW YORKER, JANUARY 25, 2016
assailant's features, and subsequently
picked Avery out of both a photo array
and a live lineup. At trial six months later,
Avery was found guilty and sentenced
to thirty-two years in prison. He served
eighteen of those before being exoner-
ated by DNA testing, a technology not
available at the time of the trial. That
DNA test also identified Beerntsen's ac-
tual assailant: a man named Gregory
Allen, who was, by then, imprisoned for
another assault.
This was bad news for the Manito-
woc County Sheri 's Department. As
the public learned soon after the exon-
eration, local police had gone to the
sheri 's department within days after
the attack to report that Allen may have
been responsible; the department, con-
vinced that it had the right man, declined
to investigate. Ten years later, while
ser ving time, Allen confessed to the
assault. Again, the sheri 's department
was alerted and, again, no one acted;
Avery remained in prison for another
eight years. In light of this information,
he filed a lawsuit against the county for
thirty-six million dollars.
In 2005, while the defendants in that
civil suit were being deposed, Avery was
arrested again---this time for the mur-
der of a twenty-five-year-old photogra-
pher named Teresa Halbach. Four months
later, his sixteen-year-old nephew, Bren-
dan Dassey, was arrested as well, after
he confessed to helping Avery rape and
murder Halbach and burn her body.
In 2007, after separate trials, both were
found guilty and sentenced to life in
prison.
Ricciardi and Demos examine those
convictions in "Making a Murderer,"
and the information they present has led
viewers to respond with near-universal
outrage about the verdicts. Because of
the pending civil litigation, the Manito-
woc County Sheri 's Department was
supposed to have nothing to do with the
Halbach investigation beyond lending
any necessary equipment to the jurisdic-
tion in charge. Yet members of the de-
partment were involved in the case at
every critical juncture. One of them was
allegedly left alone with Halbach's vehi-
cle for several hours after it was located
and before Avery's blood was discovered
inside. Another found the key to Hal-
bach's S.U.V. in Avery's home---in plain
view, even though the property had pre-
viously been searched by other investi-
gators six times. A third found a bullet
fragment in Avery's garage, again after the
premises had been repeatedly searched.
The analyst who identified Halbach's
DNA on that bullet had been instructed
by a county detective to try to come up
with evidence that Halbach had been in
Avery's house or garage. Perhaps most
damning, the defense discovered that a
vial of Avery's blood, on file from the
1985 case, had been tampered with; the
outer and inner seal on the box in which
it was kept had been broken, and the vial
itself had a puncture in the top, as from
a hypodermic needle.
That is sobering stu , but the most
egregious misconduct shown in the
documentary concerns not Avery but
his nephew, Brendan Dassey---a stone-
quiet, profoundly naïve, learning-dis-
abled teen-ager with no prior criminal
record, who is interrogated four times
without his lawyer present. In the course
of those interrogations, the boy, who ear-
lier claimed to have no knowledge of
Halbach, gradually describes an increas-
ingly lurid torture scene that culminates
in her murder by gunshot.The gun comes
up only after investigators prod Dassey
to describe what happened to Halbach's
head. Dassey first proposes that Avery
cut o her hair, and then adds that his
uncle punched her. Finally, one of the
investigators, growing impatient, says,
"I'm just going to come out and ask you:
Who shot her in the head?" After the
confession is signed, the prosecutor calls
a press conference and turns Dassey's
story into the definitive account of what
happened---a travesty of justice for Dassey
and Avery, given the questionable nature
of the interrogation, and a terrible cru-
elty to the Halbach family.
Dassey repeatedly recanted his con-
fession, including in a letter to the judge
and on the witness stand. But it was
too late. "Put the tape of his confession
in the VCR or DVD player and play it,
there's our case right there," Halbach's
brother told the press. He was right,
but he shouldn't have been. Most
people find it impossible to imagine
why anyone would confess to a crime
he didn't commit, but, watching Dassey's
interrogation, it is easy to see how a
team of motivated investigators could
alternately badger, cajole, and threaten
a vulnerable suspect into saying what
they wanted to hear. When Dassey's
mother asked him how he came up with
so many details if he was innocent, he
said, "I guessed." "You don't guess with
something like this, Brendan," she re-
plied. "Well," he said, "that's what I do
with my homework, too."
By chance, I have known many of
the details of the Avery case since
long before the release of "Making a
Murderer," because in 2007 I spoke at
length with Penny Beerntsen. At the
time, I was working on a book about
being wrong---about how we as a cul-
ture think about error, and how we as
individuals experience it---and Beernt-
sen, in identifying Avery as her assail-
ant, had been wrong in an unusually
tragic and consequential way.
Beerntsen had also been unusual
among crime victims involved in wrong-
ful convictions in that she had instantly
accepted the DNA evidence---and, with
it, her mistake. "It ain't all her fault, you
know," Avery had said at the time of his
release. "Honest mistake, you know."
But Beerntsen had felt horrifically guilty.
"This might sound unbelievable," she
told me when we first talked, "but I re-
ally feel this way: the day I learned I had
identified the wrong person was much
worse than the day I was assaulted. My
first thought was, I don't deserve to live."
She wrote Avery a letter, apologizing to
him and his family, and, concerned by
the missteps and misconduct that led to
his incarceration, became involved with
the Innocence Project, which seeks to
free the wrongfully convicted and to re-
form legal practices to help prevent mis-
carriages of justice.
Given her history, Beerntsen does
not need any convincing that a crimi-
nal prosecution can go catastrophically
awry. But when Ricciardi and Demos
approached her about participating
in "Making a Murderer" she declined,